City claims it wants to settle the EPA lawsuit, but some say there's no sign of compromise

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Mayor John Suthers, elected in 2015, inherited a neglected stormwater system and has worked to fix it.

But not everyone buys Suthers' claim that the city is doing all it can to settle a federal lawsuit filed by regulators two years ago — in the face of U.S. District Judge Richard Matsch's disastrous Nov. 9 ruling against the city.

"Every time the Springs makes an offer, it is business as usual," says Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District, a plaintiff in the case. "They say, 'You have seen a list of what we plan on doing, and that's enough.'"

Officials with Pueblo County and the Colorado Department of Public Health and Environment (CDPHE), also plaintiffs along with the Environmental Protection Agency, say they want to settle, too.

"I am totally convinced that every dollar we've spent on litigation is a dollar not going into projects," Pueblo County Commissioner Terry Hart says.

But Winner and Hart say they want an enforceable agreement to assure the city follows through, not a given considering Colorado Springs' track record of shirking its drainage responsibilities.

And while Suthers cites a 20-year, $460-million intergovernmental agreement (IGA) with Pueblo County and a new voter-approved stormwater fee as proof the city means business, a state official notes the city still defies the law.

"Many of the violations that Judge Matsch found are ongoing violations of the Clean Water Act," Patrick Pfaltzgraf, director of CDPHE's Water Quality Control Division, says in a statement. He also warns that Matsch "has broad authority" to slam the city with court orders to force the city's compliance with the Clean Water Act.

At issue is a lawsuit in which regulators allege the city failed to force developers to install necessary drainage infrastructure, thereby allowing sediment and pollution to befoul Fountain Creek south to Pueblo and, via the Arkansas River, to points east and south.

And while Suthers has promised to do better, plaintiffs note the current IGA specifically says the agreement doesn't bind future city officials to fund it.

"The biggest issue is no one trusts the Springs that they will follow through," Winner says. "They dissolved the Stormwater Enterprise once. What will stop them from doing it again?"

Indeed, the city's shoddy and under-funded stormwater controls date back decades and include the flip-flop of adopting stormwater fees in 2007 (without a public vote) only to abolish them two years later after voters approved Issue 300 that barred payments between the city and its enterprises.

Thereafter, the city's spending on flood control dwindled to less than $2 million a year, and it continued to pollute streams and the Arkansas river.

Then came two scathing audits by regulators in 2013 and 2015, during the tenure of then-Mayor Steve Bach, which resulted in little action. So in 2016, Pueblo County threatened to rescind Colorado Springs Utilities' construction permit for the $825-million Southern Delivery System water pipeline from Pueblo Reservoir unless the city fixed its drainage problems.

That led to the April 2016 IGA, in which the Springs agreed to construct 71 stormwater projects and improve maintenance. Despite that, the EPA and CDPHE sued in November 2016.

CourtesyCDPHE

Patrick Pfaltzgraf

A two-week trial in September addressed just three examples of developments within the city with inadequate stormwater controls, of the city's hundreds of violations. Matsch found that the city defied its federal discharge permit by waiving water quality requirements in the northeast Indigo Ranch development; by failing to enforce its own rules against the developer of Star Ranch Filing 2, and by allowing installation of a misdesigned drainage basin at MorningStar at Bear Creek.

In a statement issued after Matsch's ruling, Suthers lamented the lawsuit's cost — already more than $3.3 million — and blamed the plaintiffs. "[I]f the state and EPA insist on continuing to litigate every issue, we have no choice but to continue to do so," he wrote, noting the city has taken "extraordinary steps" toward creating "the best stormwater program in the state."

But Winner says the city, not the plaintiffs, refuses to enter into a consent decree that would end the lawsuit.

Although plaintiffs haven't floated dollar figures in penalties or additional drainage requirements, Winner and Hart say they want a deal that's enforced by an outsider to ensure the city adheres to its conditions.

"Citizens would like that — to see they're getting their dollar's worth," Winner says. "How can we be sure they're going to spend that $460 million unless there's some consent order? They [city officials] want to self-audit. What I want is a third-party audit, and I think Pueblo would see it the exact same way."

(The Independent asked the Mayor's office to comment on whether they are willing to negotiate, and they re-sent the prior statement.)

Says Hart, "I'm willing to talk about anything to resolve the case." But, given the city's past flip-flop on stormwater, he, too, wants more than a handshake.

"What we worry about is making sure everything we enter into isn't based purely on trust, but that it's what we agreed to and it's enforceable," he says, adding, "Honestly, I don't know if the city is ready, willing and able to settle."

He bases that thought on two things: First, Hart, an attorney, ran into Suthers, who's also a lawyer, at the State Fair where the mayor expressed disappointment there'd been no settlement. Hart told him that Pueblo County wants to discuss it. He says nothing happened. Second, "There was conversation a week or so before the judge's order came out about whether a settlement discussion might be appropriate," he says, "and I have not heard back."

He adds, "I don't think either community is benefited by constantly slugging it out in court."

Winner agrees and wonders why the city seems bent on letting the lawsuit move ahead to a trial of dozens of violations and a determination of sanctions.

"It's a very expensive game of chicken to play with taxpayers' dollars," he says.